On Thursday, November 4, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) making good on President Biden’s pledge to require private employers with 100 or more employees to implement vaccination-or-testing mandates for their employees.

Coverage

The requirements of the ETS do not apply to employers covered by President Biden’s federal contractor vaccination Executive Order or healthcare providers subject to the requirements of OSHA’s COVID-19 Healthcare ETS (29 U.S.C. § 1910.502). (Implementing guidance for the federal contractor Executive Order was released on September 24. Read about those requirements here.)

The ETS covers all U.S. employers not described above that have 100 or more employees at any time the ETS is in effect. In determining employee headcount for purposes of ETS coverage, employers must consider all employees firm- or company-wide, not just at any specific worksite. This includes part-time employees, employees working from home, and temporary or seasonal workers directly employed by the employer.

Independent contractors and temporary employees provided by a staffing agency do not need to be included in the employee headcount. However, according to OSHA, covered employers may require contractors or temporary employees provided by a staffing agency to conform to their vaccination and masking policies.

If an employer does not have 100 or more employees as of the ETS’s effective date, it can thereafter become covered if its employee headcount meets 100 employees. An employer whose workforce has fluctuated and gone below the 100-employee threshold is still covered by the emergency temporary standard for its duration — essentially, once an employer becomes covered by the ETS, it must abide by its terms for the duration of the standard.

Employees of covered employers who 1) do not report to a workplace where other individuals (such as coworkers or customers) are present, 2) work from home, or 3) work exclusively outdoors are not required to abide by the ETS standards. However, these employees are included for purposes of determining employee headcount.

Employees who work “exclusively outdoors” must meet three criteria: 1) the employee must work outdoors on all workdays; 2) the employee must not routinely occupy vehicles with other employees as part of their work duties (including driving to worksites together in a company vehicle); and 3) the employee must work outdoors for the duration of every workday except for de minimis use of indoor spaces where others may be present, such as a multi-stall bathroom or an administrative office, as long as the time spent indoors is brief or occurs exclusively in the employee’s home.

Employer Mandates

Mandatory Vaccination Policy

Covered employers must establish, implement, and enforce:

1. A written mandatory vaccination policy,

   or

2. A written policy allowing employees to choose either to be fully vaccinated against COVID-19, or wear a face covering and provide proof of regular COVID testing.

OSHA-provided examples of a mandatory vaccination policy and an elective policy can be found on their website.

A person is considered “fully vaccinated” two weeks after completing the applicable one-dose (for Johnson & Johnson) or two-dose (for Pfizer and Moderna) series of vaccines as approved and authorized by the FDA. Booster shots or additional doses are not considered in determining whether an employee is fully vaccinated.

Whichever policy a covered employer chooses, the policy must include a provision requiring employees to notify the employer of a positive COVID-19 test or COVID-19 diagnosis. Employers must make the policy written and must distribute it to employees.

A mandatory vaccination policy is defined as an employer policy requiring each employee to be fully vaccinated, except if:

• A vaccine is medically contraindicated;

• Medical necessity requires a delay in vaccination; or

• An individual is legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

If a covered employer with a mandatory vaccination policy has employees who fall within any of the three exempted categories, OSHA directs that those employees must abide by the weekly testing and face mask policies (except in the case of those whose accommodations also exclude testing and/or face mask wearing). The EEOC has provided guidance for employers seeking to implement disability and religious accommodation policies.

Covered employers are free to implement partial mandatory vaccination policies that only apply to a portion of their workforce. The ETS uses as an example a retail corporation choosing to require vaccination of only those working in stores and to treat vaccination as optional for employees working in an office setting or performing intermittent telework. In that example, office or occasional teleworking employees would be permitted to choose between becoming fully vaccinated or complying with masking and weekly testing requirements.

Determination of Employee Vaccination Status

Covered employers must determine the vaccination status of each employee by requiring proof of vaccination status. Acceptable means for proving vaccination status include:

1. Record of immunization from a health care provider or pharmacy;

2. A copy of the COVID-19 Vaccination Record Card;

3. A copy of medical records documenting the vaccination;

4. A copy of immunization records from a public health, state, or tribal immunization information system; or

5. A copy of any other official documentation that contains the type of vaccine administered, the date(s) of administration, and the name of the administering health care professional(s) or clinic site(s).

If an employee cannot produce an acceptable proof of vaccination, they may submit a signed attestation including their vaccination status, attesting that they have lost or otherwise cannot produce proof of vaccination, and the following language:

“I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”

Booster shots or additional doses are not considered in determining full vaccination and information about additional shots need not be collected under the ETS.

Covered employers must maintain a record of each employee’s vaccination status as well as the acceptable proof of vaccination for those who are vaccinated or partially vaccinated. They must also keep a roster of each employee’s vaccination status. These records and roster are considered employee medical records and should be maintained in compliance with 29 C.F.R. § 1910.1020 while the ETS remains in effect.

Where an employer has previously ascertained proof of attestation or an employee’s vaccination status before implementation of the ETS, that attestation or proof is grandfathered as acceptable under the ETS. It should be retained as an employee medical record while the ETS is in effect.

If an employee does not provide an acceptable proof of vaccination or attestation, covered employers must treat that employee as if they are not fully vaccinated for purposes of the ETS.

Leave and Pay Mandates for Employee Vaccinations

Regardless of whether they have implemented a mandatory vaccination policy or an elective policy, covered employers must provide the following for employees who receive the COVID-19 vaccine:

1. A reasonable amount of time for each employee to receive their primary vaccination dose(s);

2. Up to four hours of paid time, including travel time, at the employee’s regular rate of pay, to receive the primary vaccination dose(s); and

3. “Reasonable time” and paid sick leave to allow employees to recover from side effects experienced following any primary vaccination dose.

Testing Mandate for Employees Who Are Not Fully Vaccinated

Covered employers must ensure that employees who are not fully vaccinated comply with weekly testing requirements established by the ETS. Specifically:

1. An employee who reports to a worksite where other individuals (such as coworkers or customers) are present at least once every seven days must:

   • Be tested for COVID-19 at least once every seven days, and

   • Provide documentation of the most recent COVID-19 test result to their employer no later than the seventh day following the date on which they provided the last test result.

2. An employee who does not report to a worksite where other individuals are present at least once every seven days must:

   • Be tested for COVID-19 within seven days prior to returning to such a worksite, and

   • Provide documentation of that test result to their employer upon return to the worksite.

Employees who do not comply with the proof of testing requirements must be removed from the workplace until they provide a test result. An employee who receives a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed health care provider is not required to undergo COVID-19 testing for 90 days following their positive test or diagnosis.

Employers must keep record of each test result provide by unvaccinated employees, and these test results should be treated as confidential employee medical records for the duration of the ETS.

The ETS does not require employers to provide the COVID-19 tests or to pay for the costs associated with testing. However, it is possible that other laws such as the Americans with Disabilities Act or Title VII, and corollary state laws, may be interpreted to impose such a requirement for individuals who qualify for disability or religious exemptions under those laws.

Use of Face Coverings for Employees Who Are Not Fully Vaccinated

Covered employers must require employees who are not fully vaccinated to wear face masks when indoors, or when occupying a vehicle with another person for work purposes. Unvaccinated employees are not required to wear face masks:

1. When alone in a room with floor to ceiling walls and a closed door;

2. When eating or drinking at the workplace, or for identification purposes in compliance with safety and security requirements;

3. When wearing a respirator or medical procedure mask; or

4. Where the use of face masks is infeasible or creates a greater hazard that would excuse compliance, such as when an employee’s mouth must be seen for job-related reasons or when face covering presents risk of serious injury or death to the employee.

Employers cannot prohibit customers, visitors, or employees from wearing face coverings voluntarily.

The ETS does not require employers to pay for costs associated with face masks. Again, it is possible that other applicable laws may be interpreted differently on a case by case basis.

Notification of Positive COVID Test

Employers must require that employees notify the employer of a positive COVID-19 test. If an employee tests positive for COVID or receives a COVID diagnosis, the employee must be immediately removed from the workplace (unless the employee works from home). They may not return to their worksite until they 1) have received a negative result on a COVID-19 nucleic acid amplification test (NAAT) following a positive COVID-19 antigen test, 2) meet the CDC’s “Isolation Guidance” return to work criteria, or 3) have received a recommendation to return to work from a licensed health care provider.

Covered employers do not need to provide paid time off during this removal period, unless required to do so because of some other law, regulation, agreement, or employer policy.

Information Provided to Employees

Covered employers must inform employees, in a language and at a literacy level the employee understands, about:

1. The requirements laid out in the ETS, as well as the policies implemented by the employer to comply with the standards;

2. The CDC document “Key Things to Know About COVID-19 Vaccines”;

3. Protections against retaliation and discrimination for employees reporting work-related injuries or illness; and

4. Laws that provide for criminal penalties for knowingly supplying false statements or documentation (18 U.S.C. § 1001 and section 17(g) of the OSH Act).

Reporting of COVID Fatalities and Hospitalizations to OSHA

Covered employers must report to OSHA within eight hours of learning about any work-related COVID-19 fatality. Covered employers must also report any work-related COVID-19 in-patient hospitalization within 24 hours of learning about the in-patient hospitalization.

Recordkeeping and Availability

Upon request by OSHA, covered employers must provide records associated with the ETS. OSHA requires that employers provide their written COVID policies within four business hours of any request, and any other records or documents required by the ETS should be made available by the end of the next business day following a request by the agency.

ETS Compliance Deadlines

The ETS will take effect on November 5, 2021. By December 5, 2021, all covered employers must have implemented every requirement of the ETS except for mandatory testing for employees who are not fully vaccinated. By January 4, 2022, covered employers must comply with that section as well by implementing COVID testing for all employees who have not received all doses required for primary vaccination (2 doses for Pfizer and Moderna, 1 for Johnson & Johnson).

Preemption and Penalties

The ETS is explicit that it is intended to “preempt inconsistent state and local requirements relating to these issues.” This means that OSHA intends the ETS to invalidate state or local requirements that ban or limit an employer’s authority to require vaccination, face masks, or testing. Several states and businesses are expected to challenge the ETS’s requirements.

Violations under OSHA can be penalized at $13,653 per “serious” violation, and up to $136,532 per “willful or repeated” violation.